According to the Guardian report of yesterday’s DCMS select committee hearing, a partner in Farrer & Co, Julian Pike has admitted that he knew his client, News International was misleading Parliament but has indicated that he could do nothing about it because of client confidentiality. The crucial passage is here. He conceded that:
“he hadn’t done very much” after he realised News International had misled Parliament. Asked why the firm did not drop NI as a client or tell the authorities about the extent of the criminal activity at the group, Pike said. “We have obligations to the client we work for.” He added: “I don’t think it’s caused me any professional embarrassment.”
It is worth exploring these apparent admissions against the Solicitors’ new code of conduct, and in particular whether would Farrers have committed any wrongdoing under those rules. Lest this seem too academic an exercise the old and new rules are similar on the material points.
Firstly, it should be said specific rules on the point under question are not available in the Solicitors’ handbook. The closest analogue is O(5.1) which indicates a solicitor must, “not attempt to deceive or knowingly or recklessly mislead the court;” and/or under O(5.2) they must not be, “complicit in another person deceiving or misleading the court;” and under O(5.3) they are also obliged (without specific reference in the rules this time to ‘the court’) under O(5.7) “to ensure that evidence relating to sensitive issues is not misused”.
Whether this rule should be taken as only applying to court based disputes and, in particular, cases when they are being dealt with in the court room is highly debatable. Court is widely defined to mean, “any court, tribunal or enquiry of England and Wales, or a British court martial, or anycourt of another jurisdiction”. One question is whether a select committee inquiry falls within this definition.
One of the indicative behaviours in the Code (which gives indications of how the rules should be interpreted) says this:
Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles: IB(5.7) constructing facts supporting your client’s case or drafting any documents relating to any proceedings containing: any contention which you do not consider to be properly arguable…
So, at least where a solicitor has participated in the construction of facts or drafting of documents relating to any “proceedings” Outcome 5 would apply. That would not be the end, of course, of a debate about whether misleading parliament is caught by these rules and, in particular, whether misleading parliament is more, less or similarly serious to misleading a “court”. What is reasonably clear is these rules provide the best analogue available in the rules currently (and historically) to dealing with the situation that Farrers found themselves in. This is important to one of the other claims made by Mr Pike. That is that rules of confidentiality prevented him from doing anything. What he did not apparently say is that he could (and perhaps should) have ceased to act; indeed he appears to have implied that confidentiality prevented him from acting.
It is important also to consider the broader ethical principles which govern solicitors in these situations. The detailed outcomes and indicative behaviours are important but there is an overrinding set of principles which must also be applied. As the SRA Handbook says, they are “the fundamental ethical and professional standards that we expect of all firms and individuals… …when providing legal services. You should always have regard to the Principles and use them as your starting point when faced with an ethical dilemma.”
These principles require lawyers to:
(a) uphold the rule of law and the proper administration of justice;
(b) act with integrity;
(c) not allow your independence to be compromised;
(d) act in the best interests of each client;
(e) provide a proper standard of service to your clients;
(f) behave in a way that maintains the trust the public places in you and in the provision of legal services;
(g) comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
(h) run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
(i) run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
(j) protect client money and assets.
Unless one takes the duty to the client as paramount, then there is at the very least a strong argument that a), b), c) and f) have been compromised. It is worth emphasising, further, that the guidance states that: “Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice. Compliance with the Principles is also subject to any overriding legal obligations.”
So unless the public interest in the administration of justice was best served by Farrers continuing to represent a client in the knowledge that they were engaged in (what they appear to accept) deceptive behaviour then the ethical principles appear to have been breached.
I am not saying they should have breached confidentiality (although there are arguments that they should, or could, that is not a matter for now). I am suggesting that there was a reason to cease to act and, given the analogous approach to what happens when a court is misled, there must be a strong presumption that withdrawal is what Farrer’s should have done.
Postscript: further details have come to light. In particular note the letter reportedly sent: